Freedom of Expression in New York State: What Remains of People Ex Rel. Arcara V. Cloud Books Inc.?

Bethel, Jeremy J., Fordham Urban Law Journal

INTRODUCTION

Legal but unpopular forms of expression have long been afforded substantial protection under the New York State Constitution. (1) Fifteen years ago, in People ex rel. Arcara v. Cloud Books, Inc., (2) the New York Court of Appeals set the New York State standard for protecting free expression against all legislation impacting expressive opportunity without reference to the particular source of protected speech. (3)

Prior to its remand to the New York Court of Appeals, the U.S. Supreme Court, in Arcara v. Cloud Books, Inc., (4) decided that legislation impacting free expression, but not directly aimed at a source of free expression, was generally constitutional. (5) Thus, under the federal Constitution, legislation aimed at quelling activity containing no protected element--or only indirectly incidentally burdening free expression-- is generally acceptable. (6) This is true whether or not that indirect incidental burden also impacts protected speech. (7)

On remand, the New York Court of Appeals found the New York State Constitution provides greater protection against all legislation that incidentally impacts free expression, whether it is "aimed" at protected speech or merely "hit[s]" protected speech. (8)

During the past decade, the standard set by the New York Court of Appeals in People ex rel. Arcara has eroded almost entirely. (9) Shortly after the Arcara ruling, the court of appeals distinguished Arcara from cases involving zoning regulation of protected speech. (10) Zoning regulation is constitutionally favored (11) so courts allow legislation that burdens protected speech if the regulations can reasonably be described as attempts to abate the adverse "secondary effects" of protected expression. (12) However, the court of appeals failed to adequately describe which test is to be applied to what type of burden and on what factual basis. (13) As a result of the distinction made by the court of appeals in Arcara, and the court's reluctance to overrule that case, (14) a New York State municipality may find it easier to shut down an "adult" (15) use by directly attacking legal speech through zoning regulation, than to shut it down by attacking illegal activity conducted on the premises. (16)

Cases following Arcara purport to illustrate the higher degree of protection against incidental infringement of free expression provided under the New York State Constitution. (17) However, those cases, while generally acknowledging the high standard set in Arcara, fail to offer that same level of protection, blurring the line between the application of "incidental burdens" jurisprudence and the "secondary effects" jurisprudence of zoning regulation. (18) Yet the court of appeals continues to call Arcara the "[s]tate constitutional standard," (19) despite the insignificant protection it actually affords. (20) If New York State truly intends to continue its "long history and tradition of fostering freedom of expression, [by] often tolerating and supporting works which in other [s]tates would be found offensive to the community," (21) then a less elastic standard must be implemented than one that largely allows a court's assessment of the importance of legislative purpose to dictate the degree to which free expression may be infringed. (22)

This Note explores the decline of People ex rel. Arcara in New York State jurisprudence over the last decade. Part I describes traditional and contemporary methods of testing free expression infringements, including a discussion of federal minimum standards, and protection expansions implemented by the New York Court of Appeals. Both the U.S. Supreme Court's and the New York Court of Appeals' Arcara holdings are also examined. Part II describes the effect of federal "secondary effects" jurisprudence upon the People ex rel. Arcara standard, and how that encounter skewed lower court application of that standard for all cases involving "content-neutral" infringement of protected speech. …

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